Mecelle/English/Articels
The Mecelle, Sharia, and the Ottoman State Samy Ayoub 122 Samy Ayoub formation of the Mecelle , both in terms of its form and content. The Mecelle consistently adopts the opinions of the late Hanafis of the early modern period and their revisions of the madhhab . I provide examples based on the content of Mecelle articles and corresponding references to them in the late Hanafi tradition. 2 The Mecelle perpetuates the role and authority of the Ottoman state in the Hanafi legal literature, which is reflected in references to sultanic orders and permissions. 3 I situate the Mecelle , as an Ottoman state project, within the late Hanafi tradition to show how the Mecelle was justified based on the internal and indigenous mechanisms of the Hanafi school itself. The drafters of the Mecelle insisted that it was inspired by the existing legal genre of legal maxims ( al- qawā‘ id al-fiqhiyya ) within the Hanafi school. References in the Mecelle and its commentaries specifically invoke the foundational work by Ibn Nujaym al-H anafī al -Mis rī (d. 970/1562-3), al- Ashbāh wa al- Nazā’ ir, for justifying the legal form (i.e., pithily expressed principles) of the Mecelle . This work was very popular among Ottoman Hanaf i jurists. For instance, Abū Sa‘īd Muhammad b. Mustafā b. ‘Uthmān al -H usaynī al - Khādimī (d. 1762) composed Majāmi‘ al- Haqā’ iq , a work on legal theory ( us ūl al -fiqh ), which incorporated Ibn Nujaym’s legal maxims as a conclusion to his work. This does not mean that some of the Mecelle articles did not depart from both early and late Hanafi legal norms. Many articles of the Mecelle departed from these formulations, but these changes were perpetuated through justificatory techniques within the Hanafi tradition itself. Therefore, I maintain that what is important about the Mecelle is not only that it represents a faithful synthesis of late Hanafi jurisprudential norms, but also it articulates new social and legal norms of the late Ottoman Empire. Furthermore, the key function of the Mecelle was to satisfy the need of the growing Ottoman bureaucracy to create a reference to the judiciary and other judicial councils, which lacked traditional Islamic legal training. 4 I observed that Syrian and Anatolian Hanafi scholars were the prime participants in the formation of the Mecelle . 5 There are two distinct features of the Mecelle : (1) the systematic nature own distinct identities, opinions, and consensus in relation to earlier H anafi opinions. See Abd al - ayy al-Laknawi, ‘Umdat al - Ri‘aya ‘ala shar al -Wiqaya (Beirut: Dar al-Kutub al- ‘ Ilmiyya, 2009), 15-6. 2 See Appendix A. I give examples from three different chapters of the Mecelle , namely: Chapters on Deposit for Safe-Keeping ( al- Wadī‘ a ), Trusts and Trusteeship ( al- ‘Āriya ), and Gift Giving ( al-Hiba ). 3 Alī Haydar Efendī, Durar al-H ukkām fī Shar h Majallat al-Ah kām , (Cairo: Dār al - Jīl, 1991), 598. See the following Mecelle Articles 1152, 1272, 1276, 1280, 1281, 1287, 1801. 4 Recep Şenturk, “Intellectual Depend ency: Late Ottoman Intellectuals between Fiqh and Social Science,” Die Welt des Islams 47 (2007): 295. Şenturk argues that the Ottoman bureaucrats saw that the modern state structure was incompatible with the legal pluralism of the Ottoman Millet System in which religious communities were allowed to follow their legal traditions in litigation. Also, he argues that late Ottoman officials were attempting to create modern Islamic law out of the traditional structures of fiqh . 5 The Egyptian Hanafi scholars are excluded due to the political tension between the Porte and the almost-independent Egypt. The Mecelle , Sharia, and the Ottoman Empire 123 of the project under Ottoman state supervision; (2) its function among the Ottoman legal regimes. This article proposes that the Mecelle should be understood in the context of the Ottoman modernization project in which it was a response generated from within the Islamic legal tradition to the Tanzimat and penetration of Western laws in Ottoman society. 6 To support these arguments, I engage the discursive reasoning of the drafters of the Mecelle to affirm its faithful adoption of late Hanafi legal norms and doctrines. Therefore, I pay special attention to the report that accompanied the Mecelle, which serves as the rationale for its creation. I discuss how the function of the Mecelle is different from Hanafi jurisprudential works. I also examine one of the authoritative commentaries on the Mecelle to evaluate how it characterized the nature and role of the Mecelle within the Ottoman legal system. Moreover, I explore some case studies to demonstrate the underlying departures and doctrinal shifts from early and late Hanafi norms. The Mecelle The Mecelle (Ar. Majalla ) is the first Ottoman attempt to codify Hanafi jurisprudence. The decision to draft the Mecelle resulted from a controversy over whether or not the Ottoman Empire should adopt the French civil code. 7 The Ottoman Council of Ministers decided to commission a work based on Islamic jurisprudence and entrusted this task to a commission under the supervision of Ahmet Cevdet Pasha (d. 1895) 8 who had been the leading advocate of this course of action. 9 The committee included ‘Alā’ al- Dīn Ibn Ibn ‘Ābidīn (d. 1889), the late nineteenth-century Damascene Hanafi authority. The Mecelle was written and promulgated between 1869/70 and 1877. It contains 1,851 articles in sixteen volumes written in Ottoman Turkish. 10 It covers contracts, torts, legal liabilities, and some principles of civil procedure. 11 Officially, the Mecelle had jurisdiction throughout the Ottoman Empire, but in fact it was never effective in Egypt. 12 In his İslam ve Osmanlı Hukukunda: Mecelle , Osman Kaşıkçı argues that the Mecelle was 6 Ş en turk, “Intellectual Dependency,” 294. 7 Wael B. Hallaq, Sharī‘ a: Theory, Practice, and Transformation (Cambridge: Cambridge University Press, 2009), 411. 8 Al- Ziriklī, al- ‘Alām , 1:108. Ahmet Cev det b. Ismā ‘ īl b. Alī b. A hmad Agha was a Turkish minister. He travelled to Istanbul and studied Arabic and sacred sciences. He also studied law and was appointed a judge for a brief time. Then, he was appointed the head of the Ministry of Justice. 9 C.V. Findley, “Medjelle.” Encyclopaedia of Islam , 2 nd ed. (Brill Online, 2013); Ş enturk, “Intellectual Dependency,” 298. 10 There is a tradition of Hanafi jurisprudence authored primarily in Ottoman Turkish. This is reflected in the Ottoman fatāwā collections, legal epistles, or complaints filed to the Ottoman mufti s in the imperial capital. 11 Findley, “Medjelle.” 12 Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003): 211. 124 Samy Ayoub primarily dependent upon the Hanafi school. 13 He stresses that the codification of the Mecelle was a response to Western legal hegemony. 14 Yet, he asserts that the Ottoman officials were influenced by Western debates on law. 15 The Mecelle was immediately translated into Arabic, Greek, and French under t he title of “Ottoman Civil Law.” It served as the civil code in the Ottoman Empire, and briefly in the Turkish Republic, from 1869 to 1926. 16 The Mecelle articulates two central issues in the late Ottoman Empire: (1) how Islamic jurisprudence responded to legal modernity; (2) the process by which Islamic law was able to articulate new ideals and values. The drafters of the Mecelle saw its creation as a rejection of Western legal hegemony over commercial litigation within the Ottoman Empire. 17 The project of the Mecelle underscores the course of legal codification of Hanafi norms and doctrines in ways that provide insight into the process of legal development in the late nineteenth century. What I propose, then, is to understand the emergence of the Mecelle , not in terms of an epistemic break from pre-modern Islamic legal reasoning, but in terms of a continuation and transformation within the Hanafi legal tradition. The Mecelle cannot exist without dependence upon and articulation with previously existing norms and legal litera-ture. The Mecelle did not appear ex nihilo , as a legal framework alien and opposed to the existing legal literature and legal order, but necessarily emerged out of an existing legal genre of qawā‘ id and norms of late Hanafi tradition in a manner that made it an authentic representation of the legal tradition for the experts of the legal profession. 18 This article explores how the late articulations of Hanafi jurisprudence point to both the continuous internal processes of doctrinal change within the madhhab and the indigenous legal paradigm upon which these changes were justified. For, the Mecelle is not only a rich site for interrogating competing legal doctrines within the Hanafi school, but also it represents the backdrop against which the codification of 13 Osman Kaşıkçı’s work is a key secondary source, which offers a detailed documentation of the process of the formation of the Mecelle . Kaşıkçı provides original documents in Ottoman Turkish which include the meeting minutes, reports, and the final proceedings of the Mecelle committee. He provides some insights into the role of Hanafi jurists and fatāwā literature in the formation of the Mecelle. 14 Osman Kaşıkçı, İslam ve Osmanlı Hukukunda: Mecelle (I stanbul: Osmanlı Araştırmaları Vakfı, 1997), 52 -5. 15 Osman Kaşıkçı, İslam ve Osmanlı Hukukunda , 52-5. 16 Findley , “Medjelle.” 17 al-Majallah: wa- hiya tahtawī ‘alā al - qawānīn al - shar‘īyah wa -al- ahkām al - ‘adlīyah al -mut ābiqah lil -kutub al- fiqhīyah , 2 nd ed. (Qustan tīnīyah : al-Matba ‘ah al - ‘Uthmānīyah, 1887), 4-5. 18 The Mecelle incorporates Ibn Nujaym’s qawā‘ id from Article 2 to Article 100. These maxims pertain to the broad understanding of the Hanafi fiqh literature and its legal discourse. Murteza Bedir, “Fikih to Law: Secularization through Curriculum,” Islamic Law and Society 11:3 (2004): 386. See Sobhi Mahmassani, Falsafat al-Tashri fi al-Islam: The Philosophy of Jurisprudence in Islam , trans. Farhat Ziadeh (Leiden: Brill, 1961 1946), 42-7. The argument in this article situates the Mecelle within the larger context of late Hanafi tradition. The Mecelle , Sharia, and the Ottoman Empire 125 the Hanafi school and the canonization of its doctrines were completed. The Mecelle not only embodies the internal processes of legal change in the Hanafi school, but also it points to the legal, social, and economic changes within the late Ottoman Empire. These changes reflect the new emerging social, economic, cultural, and legal structures and orders. However, they were understood as a crisis of tradition not simply a crisis of adaptation to the new emergent social, political, cultural, and legal institutions. These transformations were generated both from within and outside the Muslim experience. From within, the social, economic, cultural, and political transformations of unprecedented magnitude put tremendous strain upon traditional legal institutions, legal values, and legal concepts. These societal changes deeply challenged the legal tradition as a whole, not merely a particular element in it. 19 From outside, European legal hegemony started to be felt at the heart of the empire through European control of the litigation of most of the commercial activities and disputations involving European citizens within the Empire. The Ottoman Empire responded to these challenges by transforming its laws through radical centralization and bureaucratization. Secondary Literature Ottoman legal change has been represented in some of the secondary literature mainly through the prism of westernization. 20 For example, Joseph Schacht describes the project of the Mecelle stating: “The experiment of the Mejelle was undertaken under the influence of European ideas, and it is, strictly speaking, not an Islamic but a secular code.” 21 He argues, “Strict Islamic law is by its nature not suitable for codification because it possesses authoritative character only in so far as it is taught in the traditional way by one of the recognized schools.” 22 Moreover, Schacht recognizes that the Mecelle contains “certain modifications of the strict doctrine of Islamic law, particularly in the rules concerning evidence.” 23 In addition, Bernard Lewis describes the efforts of the Mecelle committee as: “a digest rather 19 David Luban, Legal Modernism (Ann Arbor: University of Michigan Press, 1994), 28. 20 Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave MacMillan, 2011), 15; Şenturk, “Intellectual Dependency,” 284; Dora Glidewell Nadolski, “Ottoman and Secular Civil Law,” International Journal of Middle East Studies 8:4 (1977): 518; Shirine Hamadeh, “Ottoman Expressions of Early Modernity and the ‘Inevitable’ Question of Westernization,” The Journal of the Society of Architectural Historians 63 (2004): 34; Avi Rubin, “Ottoman Judicial Change in the Age of Modernity: A Reappraisal, ” History Compass 7:1 (2009): 123. 21 Joseph Schacht, An Introduction to Islamic Law (New York: Oxford University Press, 1982), 92. 22 Ibid. 23 Ibid., 93. Schacht argues that the Mecelle requires all traditional qualifications of a witness and his evidence, but not the quality of being a Muslim (art. 1684). Schacht’s observation is accurate in that the section on testimony and evidence in the Mecelle do not address the religion of the witnesses. The focus is primarily on the exactitude and justice of the witness as well as his/her reputation (art. 1705). The just person is defined in the same article as the one whose good deeds are dominant over his/her bad deeds. 126 Samy Ayoub than a code of Şeriat law of the Hanafi school … one of the great achievements of Turkish jurisprudence.” 24 The Encyclopaedia of Islam introduces the Mecelle by stating, “it reflects Western influence mainly in its division into numbered books, sections and articles, as in European codes.” 25 Some insist that the Mecelle is a deviation from the authoritative opinions of the school. 26 Following the same discourse, without providing any evidence, some scholars have argued that the Mecelle is merely a random selection of legal doctrines from different schools of law. 27 These positions consistently juxtapose the Mecelle with the Hanafi jurisprudence, arguing that it is a formalized legal project that was authorized by the state. 28 Wael Hallaq, for instance, argues: “The transpositi on of Islamic law from the fairly independent and informal terrain of the jurists to that of the highly formalized and centralized agency of the state found manifestation in the Mecelle- ı Ahkām - ı Adliye .” 29 He points out that a committee headed by the Sharia jurist Ahmet Cevdet Pasha produced it. Yet, Hallaq paints a picture in which the Mecelle was a result of a struggle between forces of tradition and Westernization. Hallaq pinpoints that Ahmet Cevdet Pasha insisted that the law had to be “faithful to the cultural constitution of the Empire against the powerful Westernizer Ali Paşa who called for the adoption of the French Code of 1804 (known as the Code Napoleon).” 30 Hallaq contends, “One of the aims of the Mecelle was to provide, in the manner of a code, a clear and systematic statement of the law for the benefit of both the Sharia and Niza miyye courts.” 31 Erroneously, Hallaq claims that the opinions chosen did not necessarily reflect the authoritative doctrines in the Hanafi school. Moreover, he asserts that these doctrines were not exclusively Hanafi, for some of them were imported from other schools after being generally approved by the later Hanafis. 32 The Mecelle , for Hallaq, was “a last -ditch effort to salvage the sharī‘ a as a law in force, but it was also an attempted remedy applied to a problem that had originated as a remedy.” 33 The main concern with Hallaq’s narrative is its dismissal of the arguments made by the drafters of the Mecelle that it is an authentic Islamic legal genre. He reduces its significance to a mere experimental project to rescue Islamic law at the end of the Ottoman Empire. Also, he disregards the stated intention of the Mecelle drafters as well as their justification for its formulation to burgeoning Ottoman 24 Bernard Lewis, The Emergence of Modern Turkey (New York: Oxford University Press, 1968), 123. 25 Findley, “Medjelle.” 26 Abdullahi Ahmed An-Na ‘im, “The Compatibility Dialectic: Mediating the Leg itimate Coexistence of Islamic Law a nd State Law,” Modern Law Review 73:1 (2010): 20; Hallaq, Sharī‘a , 411. 27 An- Na‘im, “The Compatibility Dialectic,” 20. 28 Hallaq, Sharī‘a , 411. 29 Ibid. 30 Ibid. 31 Ibid. 32 Ibid. 33 Ibid., 412.